I v r i a G l a s s F r i e dR e b e k a h L a c e y

M I YA R E S A N D H A R R I N G T O N L L P

Municipal Property Acquisitions and Dispositions:Permanent Land Use Restrictions

August2019

DISCLAIMER

This information is provided as a service and is general in nature. The presentation today does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney-client relationship between the presenter and the recipient. You are advised not to take, or to refrain from taking, any action based on this information without consulting legal counsel about the matters presented.

PRESENTATION OUTLINE

• Property Acquisitions: Creating, Administering, and Enforcing Restrictions Under M.G.L. Chapter184• Conservation Restrictions• Agricultural Preservation Restrictions

• Property Dispositions and Changes of Use: Restrictions Commonly Affecting Municipally Owned Conservation Land• Article 97• Land and Water Conservation Fund Grant Conditions• Charitable Public Trusts

Perpetuity

M.G.L. c.184, §32M.G.L. c.184, §23

30 years Perpetuity

Ch. 184, §31 Restrictions

Conservation

Agricultural

Conservation RestrictionForbid or limit

• Locating structures and utilities,

• Dumping material as landfill, or dumping unsightly or offensive materials,

• Removal or destruction of vegetation,

• Excavation, dredging or removal of mineral in such manner as to affect the surface,

• Surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition,

• Acts detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or

• Acts detrimental to land or water areas.

Agricultural Preservation Restriction

Forbid or limit

• Locating buildings except for agricultural purposes or for dwellings used for family living by the land owner, his/her immediate family, or employees;

• Excavation, dredging or removal of mineral substance in a manner as to adversely affect the land's overall future agricultural potential; and

• Acts detrimental to retention of the land for agricultural use.

Adoption

Conservation

Agricultural

CPAPERMITS

HCAS

GRANTFUNDING

VOLUNTARY

Planning for Conservation

Is there land we want conserved?

Process: CR

HELD BY CITY OR TOWN

ü Grantorü Grantee

Municipality/Agencyü Sec. EEOEA

HELD BY CHARITABLECORPORATION OR TRUST

ü Grantor ü Granteeü Mayor/City Manager &

City Council; Select Board

ü Sec. EEOEA

GOALS

- Conservation values- Permitted uses and

non-permitted uses.- Helpful to check

MassGIS/OLIVER and local planning documents

Municipal Grantor/Grantee

BASELINEDOCUMENTATION

- Photographs- Narrative

description of property

- Maps

1 2

DRAFT CR

- EOEEA’s model- Key provisions:

allowed uses, prohibited uses, access, enforcement, dissolution of CR, and amendment of CR

- Building envelopes- Agricultural Uses

Process

APPLICATION

TO DCR

- Meets and bounds/Survey Plan

- Map showing CR and abutting CR land

- Grantor’s Deed- Maps showing

conservation values- Other

permits/approvals

3 4

FINAL APPROVAL

- Collect required signatures

- Send CR to Secretary of Energy and Environmental Affairs.

Process

RECORDING

Record the restriction.

5 6

Process: APR

HELD BY CITY OR TOWN

ü Grantorü Grantee

Municipality/Agencyü Commissioner of

Food and Agriculture

HELD BY CHARITABLECORPORATION OR TRUST

ü Grantor ü Granteeü Mayor/City Manager &

City Council; Select Board

ü Commissioner of Food and Agriculture

APR Program: M.G.L. c.20, s. 23

Requirements

• At least 5 acres

• Actively devoted to agriculture for two years

• Produce at least $500 in gross sales per year for the first 5 acres plus $5 for each additional acre or $0.50 per each additional acre of woodland and/or wetland

APR Program: M.G.L. c.20, s. 23

Other Criteria Considered

• Suitability and productivity of land based on soil classification, physical features, and location.

• The degree of threat to the continuation of agriculture on the land due to circumstances such as owner's death, retirement, financial positions, development pressure, or insecurity due to rental agreements.

• The size or composition of the land that determines if it is economically viable for agricultural purposes, and the likelihood that it will remain in agriculture in the future.

Marijuana and Hemp

M.G.L. c.128, §1A: • Does not explicitly exclude marijuana and

hemp from definition of agriculture

M.G.L. c.40A, §3: • Excludes marijuana from Dover protections

M.G.L. c.61A, §2: • Ambiguous as to whether cultivation of

marijuana or hemp would qualify for protections

Monitoring

Walk the land

Engage the

community

Educate new

ownersCPA Fu

nds to

assist la

nd

trusts

Enforcement

Meet with Landowner

Permit Violations

Court Action

Enforcement

Court Action

“The restriction may be enforced by injunction or other proceeding, and shall entitle representatives of the holder to enter the land in a reasonable manner and at reasonable times to assure compliance. If the court in any judicial enforcement proceeding … finds there has been a violation of the restriction … then, in addition to any other relief ordered, the petitioner bringing the action or proceeding may be awarded reasonable attorneys' fees and costs incurred in the action proceeding.”

M.G.L. c.184, §32

Enforcement

Court Action

Wellesley Conservation Council, Inc. v. Robert Pereira35 Mass. L. Rptr. 113 (Norfolk Superior Ct., June 12, 2018)

• M.G.L. c.184, §32 – Conservation statute • No additional damages awarded

• M.G.L. c.242, §7 – Willful trespass to trees, etc. • No damages awarded

Amendment

• Only in exceptional circumstances

• Consistent with the purposes of this Conservation Restriction

• Not affect its perpetual duration

• Approval from appropriate state authority

• Article 97

RESTRICTIONS OFTEN ENCOUNTERED INDISPOSITIONS AND CHANGES OF USE OFCONSERVATION LAND

• Article 97• Land and Water Conservation Fund grant restrictions• Public charitable trusts

Article 97

Prior Public Use Doctrine

“The rule that public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion is now firmly established in our law.”

Robbins v. Department of Public Works, 355 Mass. 328, 330 (1969)

Article 97

M.G.L. c. 40, §15A1951: Legislature delegated authority to municipalities to change use of municipally owned land acquired for a specific purpose (other than land acquired for park purposes)

• Board or officer having charge of land gives notice to city council or board of selectmen that land is no longer needed for original purpose

• City: Two-thirds vote of city council, plus approval of mayor or city manager

• Town: Two-thirds vote of town meeting

Article 97

Article 97*

1972: MA Constitution amended by Article 97

• Strengthened public use doctrine for conservation land by requiring 2/3 vote of Legislature (not just majority)

• Expanded protection of such land by also requiring 2/3 vote of Legislature for disposition (even if use unchanged)

(*actually Article 49 of the Amendments to the Massachusetts Constitution as amended by Article 97)

Article 97

Article 97

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

* * * *Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.

Article 97

• “Under our common law, land is dedicated to the public as a public park when the landowner’s intent to do so is clear and unequivocal, and when the public accepts such use by actually using the land as a public park.”

Is the property protected by Article 97?

Smith v. City of Westfield, 478 Mass. 49 (2017)

• “There are various ways to manifest a clear and unequivocal intent. … The recording of a deed or a conservation restriction is one way of manifesting such intent but it is not the only way.”

• “[W]e consider the totality of the circumstances...”

“taken or acquired for such purposes”

Article 97

• Language in the deed or order of taking• Context of acquisition (e.g., pursuant to

an urban renewal plan)• Recording of a conservation restriction• Vote of city council or town meeting• Custody given to conservation

commission, parks department, etc.• Actual use of the land

Is the property protected by Article 97?

Possible Evidence of Designation for Article 97 Purposes:

Keep in mind: Article 97 applies retroactively!

“taken or acquired for such purposes”

Article 97

Does the contemplated action trigger Article 97? Opinion of the Attorney General,

June 6, 1973(“Quinn Opinion”)

YES

“used for other purposes or otherwise disposed of”

• A change of use to a purpose inconsistent with Article 97 triggers the requirements of Article 97, even if there is no change in ownership of the property

• Refer to “prior public use” case law to determine what constitutes a change in use

Article 97

Does the contemplated action trigger Article 97? Quinn Opinion, cont’d

“Dispositions” are transfers of legal or physical control• Between government agencies• Between political subdivisions• Between levels of government• From public to private

Such transfers include:• Outright conveyances• Takings by eminent domain• Leases (whether short-term or long-term)• Granting or taking of easements

YES

“used for other purposes or otherwise disposed of”

Article 97

Does the contemplated action trigger Article 97?

Mahajan v. DEP, 464 Mass. 604 (2013)

• A license is not the disposition of a property interest triggering Article 97

• Also, Chapter 91 license granted to landowner does not transfer control of property fromlandowner and thus does not trigger Art. 97

Opinion of the Attorney General,May 16, 1980

• Permits granted by DEM to landowners surrounding Otis Reservoir are not interests in land and do not trigger Article 97

NO

“used for other purposes or otherwise disposed of”

Article 97Things to Know

• MA EEA Article 97 Land Disposition Policy• Municipal approval• Unanimous Conservation Commission vote• Unanimous Park Commission vote if parkland• Two-thirds Town Meeting or City Council vote

• “No net loss”• Violation makes municipality ineligible for EEA grants

• MEPA filing• Required for:• Conversion of Article 97 land to non-Article 97 purpose• Some conversions of active agricultural land to non-ag use• Release of preservation restriction

• IF transaction involves state agency action or funding or is part of a project requiring state permits

• See 301 CMR 11.01(2) & 11.03(1)(b)

Article 97

Special Acts

Land & Water Conservation Fund

Land and Water Conservation Fund Act of 1965, Section 6(f)(3):“No property acquired or developed with assistance under this section shall, without the approval of the Secretary, be converted to other than outdoor public recreation use.”

(currently codified at 54 U.S.C. §200305(f)(3))

Land & Water Conservation Fund

Things to Know• Boundary of land affected by LWCF Section 6(f)(3)

restriction should be depicted in grant documents• This area cannot be converted from outdoor

recreation use, no matter how little grant money was received or how long ago it was, without adhering to regulatory requirements for conversion (36 CFR §59.3)

• MA EEA Division of Conservation Services has LWCF grant records; LWCF information may also be recorded

Public Charitable Trusts

“Property conveyed to a governmental body … for particular purposes may be subject to an enforceable general public obligation or trust to use the property for those purposes.”

Cohen v. City of Lynn, 33 Mass. App. Ct. 271, 275 (1992) (quoting Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 18 (1960)

Key words in deed or will: land shall be used for specified purpose “forever” or “in perpetuity”(with no right of reversion)

Public Charitable Trusts

Things to Know

• Can be enforced by the AG or ten taxpayers under M.G.L. c.214, §3(10)

• Can’t be voided by Legislature• Opinion of the Justices to the Senate, 369 Mass. 979, 983

(1975)

• Municipality can petition court to modify trust under the doctrine of cy pres by filing a petition under M.G.L. c.214, §10B (on grounds that purpose has become impossible or impractical to fulfill)

Ivria Glass FriedRebekah Lacey

Miyares and Harrington LLP40 Grove Street

Suite 190 Wellesley, MA 02482

(617) 489-1600ifried@miyares-harrington.comrlacey@miyares-harrington.com

www.miyares-harrington.com